Criminal Responsibility and Children: A New Defence Required to Acknowledge the Absence of Capacity and Choice

Abstract

When children reach 10 years old they are exposed to the full brunt of the criminal law with no defence available to them to reflect their status as children. Legal theorists have repeatedly argued that criminal responsibility should only be imposed on individuals who have the capacity and freedom to choose how they behave. Children only have limited personal autonomy and therefore lack this capacity and freedom to make a genuine choice about their behaviour. They should therefore benefit from a new defence which moves away from the doli incapax emphasis on moral understanding and is available to children up to the age of 14.